Balbir Singh Yadav vs State Of U.P. And Another
2021 Latest Caselaw 3007 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 73
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4360 of 2021
 

 
Applicant :- Balbir Singh Yadav
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Radhey Shyam Yadav
 
Counsel for Opposite Party :- G.A.,P.C. Mishra
 

 
Hon'ble Siddharth,J.

Heard learned counsel for the applicant and learned AGA for the State.

Order on Criminal Misc. Exemption Application

This exemption application is allowed.

Order on Criminal Misc. Anticipatory Bail Application

The instant anticipatory bail application has been filed on behalf of the applicant,Balbir Singh Yadav, with a prayer to release him on bail inCase Crime No. 48 of 2020, under Sections- 420, 409 IPC, Police Station- Aliganj, District- Etah, during pendency of trial.

Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.

There is allegation in the FIR lodged against the applicant that the informant was Incharge Principal of his educational institution and the applicant was Gram Pradhan and both were operating account of Gram Siksha Nidhi in Shreyas Gramin Bank, Aliganj, Etah. The informant has alleged that theapplicant had withdrawn Rs. 1,50,000/- from the aforesaid account on 12.12.2011 incollusion with the Bank Manager. He never made his signature on the cheque whereby Rs. 1,50,000/- waswithdrawn from the Bank. He made complaint to the Basic Siksha Adhikari, Etah in this regard and he has permitted him to lodge the FIR against the applicant.

Counsel for the applicant has submitted that theapplicant has beenfalselyimplicated in this case by the informant. Money waswithdrawn with his consent and his signature is there on the disputed cheque.However, theapplicant is willing to deposit the amount of Rs. 1,50,000/- in theaccount of Gram Siksha Samiti concerned without prejudice to his rights and admission of any guilt. Counselfor theapplicant has produced before the Court a Demand Draft No. 358714 drawn on State Bank of India, Allahabad High Court Branch, dated 24.02.2021 and also filed a photocopy of the same alongwith supplementary affidavit. The applicant has definite apprehension that he may be arrested by the police any time.

Learned AGA has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear anticipatory bail cannot be granted.

Sri D.K. Ojha and Sri P.C. Mishra, Advocates have put in appearance onbehalf of Subodh Mishra who is not the informant and they are unable to prove of their client locus in the present case.

The applicant has although been implicated in thiscase by theinformant on the alleged offence of cheating andmisappropriation ofpublic money but whether he was responsible for thealleged lapse is yet to beascertained. The informant andthe applicant were having joint account for the operation of Gram Siksha Nidhi. Whether the signature onthe cheque of Rs. 1,50,000/- was of the informant or not can only be decided duringthe trial. The amount of Rs. 1,50,000/- is directed to be deposited by the applicant in the concerned account of Gram Siksha Nidhi. This payment shall be without prejudice to the rights oftheapplicant to contest thetrial and shall not be considered as admission ofany commission of offence on his part asalleged in the FIR.

After considering the rival submissions this court finds that there is a case registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of FIR the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case ofJoginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made.

Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, he is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-

1. Theapplicant willdeposit Rs. 1,50,000/- in the account of Gram Siksha Nidhi in dispute and the Bank will issue a certificate in this regard thatthe amount has beendeposited. After theamount is deposited theapplicant shall beconsidered to have beengranted anticipatory bail. He will produce the certificate of Bank before the Court/Investigating Officeralong with copy of this order.

2. The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.

3. The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.

4. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.

6. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.

7. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

8. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

9. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 25.2.2021

Rohit